What if a family member has died without a will? How will your family member’s assets be distributed, and liabilities settled? Will the state get the assets if someone dies without a will? Is the process difficult and time-consuming?
If someone dies without a will, New York State decides how their assets are passed. This process is called an Administration proceeding and is brought in the Surrogates Court of the County in which the decedent resided at the time of his or her death. There are certain people (family members) that have the right to bring an administration proceeding to claim the assets of a decedent before the state steps in. In certain circumstances, it is necessary to prove kinship to get to that point. At Landskind & Ricaforte, we represent those people that can claim the estate through a priority as well as those that must prove kinship to inherit.
A kinship hearing occurs in the estate of a person who dies without a will and has no closer living relatives other than first cousins. In this situation, the Public Administrator is the government entity designated to manage the decedent’s estate and ultimately distribute the assets to the decedent’s heirs (as proven in the kinship hearing) or to the Commissioner of Finance. The heirs must prove their entitlement to an inheritance from a person who died without a will through a lengthy process that may involve multiple court hearings. Our attorneys have extensive experience with these types of hearings, having proven kinship of a cousin who inherited over $6 million dollars from a decedent’s estate.
Probate of Last Will and Testament:
One of the most common questions we get from executor’s of a Will is – “Why do I have to go through probate if there is a Will?”
In order for a deceased person’s assets and real property to pass according to the terms of their will, a Probate Proceeding must be commenced in the Surrogate’s Court (Probate Court) in the county in which the deceased person died. To avoid this, a person must have established a Trust during their lifetime.
A probate proceeding is one where the court deems the Will valid to pass assets according to its terms. A person’s will is not automatically validated by the court but must be proven to be valid by the Petitioner (typically the named executor). This process will involve obtaining affidavits from the witnesses to the will and giving notice of the probate of the Will to the decedent’s “heirs at law” (as determined by New York State). The process is long and cumbersome and can be overwhelming to family and/or friends that are named in the Will. At Landskind & Ricaforte, we have assisted many executors in the probate of Wills both uncontested and contested.
The process results in the appointment of an Executor or Administrator who has the responsibility of marshalling the decedent’s assets, selling or distributing real estate, paying income and estate taxes and creditor’s claims and making final distributions to the heirs or beneficiaries of the Will. This is an exhaustive process and the fiduciary often finds this process of winding down a person’s life, while managing their own, a difficult task. Out of state executors find it more difficult simply due to a lack of proximity.
We have the experience and have assisted our clients in many of the areas necessary to complete, not just the probate process but the administration of the estate. Some of the services we provide are as follows:
- Probate of the Will;
- Notice to Beneficiaries and Distributees (Heirs at Law)
- Collection of assets after probate;
- Preparation of Income Tax Returns for the Decedent;
- Assistance with the payment of creditors’ claims;
- Preparation of Federal and State Estate Tax Returns;
- Accountings of the Will (Judicial and Informal)
- Distribution of Estate Assets